The Presidential pardon, or as it is more correctly known, the prerogative of mercy is a very old privilege vested in the monarch to grant clemency to convicted offenders. It is used very rarely in foreign countries and is normally given when there is compelling evidence of injustice or hardship, for which there is no other remedy.
The prerogative of mercy as contemplated in our Constitution is derived from British constitutional law, with the president substituting for the Queen in conceding such a privilege. It is a privilege, because once a person has been given the right to defend himself before an impartial court or tribunal, and is found guilty, society expects that the offender should carry the burden of the court sentence.
It is a prerogative of mercy to be resorted to when justice is evidently denied or where there are humane considerations of a high degree. Otherwise, if the Presidential pardon is bestowed on convicted persons as a nice piece of cake, whenever they want it, it would make fun of our judicial system.
The procedure is in the hands of the Executive, meaning the Minister for Justice, the Cabinet and the advice from the Attorney General. The Minister for Justice is expected to seek the advice of the Attorney General and the Constitution spells out that in cases of death sentences, the Cabinet should be involved and it is the organ to advise the President on whether to grant or refute a plea for pardon.
The Constitution only dedicates one section (S 93) to deal with the prerogative of mercy. The President can totally free a person from a court sentence or may impose conditions; he has the power to grant respite for the execution of the sentence or substitute a less severe form of punishment.
I cannot imagine how Minister Jesmond Mugliett could have visualized the possibility of a positive outcome to the application by two ADT officials found guilty of corruption. I am sure that the Attorney General would have objected and the Minister for Justice knew very well that his reputation was at stake.
It is a pity that the ADT officials’ request for a presidential pardon could be based on precedent. The presidential pardon granted in the previous case is anathema. It is conducive to the belief that a person found guilty of corruption could go to the President, who would then forgive.
An easy presidential pardon to convicted persons is not in the interest of society and not to the ministers’ best advantage. It is an undeniable fact that a minister cannot supervise all his officers at all times. If public officers have a quasi-guarantee of a presidential pardon they are more prone to abuse.
One cannot condone the minister’s part in trying to keep the officers concerned in the public service (even if for a temporary period) but his idea to resign is commendable in a society where the culture of resignation is as rare as gold. However, one questions whether in reality the minister meant or really wanted it. The Prime Minister’s role is to accept or refute a resignation, but that’s not the decisive force. Decision rests with the person offering the resignation and not with the prime minister. The prime minister could dismiss a minister but when faced with a voluntary resignation he does not have the final word. Otherwise we would only have ‘farcical’ resignations like those in recent times.
A resignation is a show of accountability and the restitution of public faith in tarnished acts of public administration.
Cases of corruption undermine the whole administrative machinery and, especially in such cases, resignations (not only by ministers) should be real and not theatrical.